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Federal Deposit Insurance Corporation v. Johnson

United States District Court, D. Nevada

October 17, 2014

COREY L. JOHNSON, et. al., Defendants.


KENT J. DAWSON, District Judge.

Before the Court is Defendant Johnson's Motion for Summary Judgment (#162). Plaintiff FDIC-R responded (#185) and filed an errata to the response (#193). Defendant replied (#206). Supplemental Authority was also filed (##211, 218, 221, 223). Also before the Court are Defendant Johnson's Motions to Strike Notice of Supplemental Authority (##213, 225). Plaintiff responded to the first motion (#214), and the time for Defendant to reply has long since passed. FDIC-R objects (#224) to Johnson's Notice of Supplemental Authority # 218, and Defendant has replied (#226).[1]

As a preliminary matter, without seeking leave of the Court, Johnson's Motion is 44 pages-nearly 50% overlength-a violation of Local Rule 7-4. The Court will overlook these failures in the interest of judicial economy. However, the parties are admonished to follow all Local and Federal Rules. Future failures in this regard will result in sanctions under Rule 11 and this Court's inherent authority.

Also, FDIC-R asserts that Johnson's repeated "failure to provide proper citations in support of his factual statements" is prejudicial (#185). The Court acknowledges that this practice could indeed prejudice FDIC-R by substantially impeding its ability to respond to asserted facts, but only if the Court were to accept such bald assertions. However, "[a] trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Further, the standard for summary judgment eviscerates any evidentiary value in such bald assertions.[2] Thus, no prejudice will lie against FDIC-R as all such unsupported assertions are inconsequential to this Court's analysis.

On a related note, the vast majority of Johnson's assertions lack any citation of any sort. The few which contain citations typically cite to exhibits which are buried and mislabeled, making the Court's review exceptionally difficult. Regardless, the simple fact that many crucial assertions lack citations is a poor beginning.

I. Motions to Strike

A. #213

Johnson brings this motion to strike without a single reference to the applicable standard. The Court will provide it here: "The court may strike from a pleading... any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Johnson claims that the FDIC-R directs the Court's attention to Robers v. United States, only because FDIC-R "once again... misunderstands the argument asserted by the Defendants." 134 S.Ct. 1854, (2014). The Court construes this as alleging immateriality or impertinence. However, Johnson fails to clarify either the argument made by Defendants, or FDIC-R's alleged misunderstanding of it. Johnson further asserts that Robers "does nothing to assist the Court as it does not... address the issue." To be clear, the issue here is whether economic fluctuations can break the causal chain, defeating proximate cause. In Robers, the Supreme Court reasoned that

[t]he basic question that a proximate cause requirement presents is whether the harm alleged has a sufficiently close connection to the conduct' at issue. Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___, 134 S.Ct. 1377, 1390.... Fluctuations in property values are common. Their existence (though not direction or amount) is foreseeable.... That is not to say that an offender is responsible for [any and all damage but] [m]arket fluctuations are normally unlike, say, an unexpected natural disaster....

Id. at 1859. Johnson is wrong. Any misunderstanding FDIC-R may have regarding Defendants' arguments is not evidenced here. Further, this case assists the Court by affirming the commonsense proposition that "fluctuations in property values" are "foreseeable." For all of the above reasons, Johnson's Motion to Strike Notice of Supplemental Authority (#213) is DENIED.

B. #225

As above, the present motion (#225) is DENIED because the citations are not redundant, immaterial, impertinent, or scandalous...." Fed.R.Civ.P. 12(f). However, the Court will construe both motions as replies to the relevant Notice of Supplemental Authority, considering all proper explanations of the impact of cited authority.

C. ORDER Regarding Future Supplemental Authority

As the parties-particularly Johnson-persist in avoiding the meat of this matter, engaging instead in irrelevant motions, the Court will be quite clear regarding any future notices of supplemental authority. Such notice will include the relevant citation, with the full text of the opinion appended. The body of the notice will be no longer than three pages, explaining briefly how it relates to the pleadings or motions currently before the Court. No other content is permissible, nor will other content will be considered by the Court. The opposing party may file a reply consisting of no more than three pages, discussing solely how the citation is or is not applicable to the pleadings or motions currently before ...

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